3 Immigrant Preference Categories 3 Immigrant Preference Categories
3.1. set-up video: family-based immigrant admissions - introduction
3.2 INA 203; 201(b); 202(b); 101(b) 3.2 INA 203; 201(b); 202(b); 101(b)
Focus on 203(a) and 201(b); 202(b); 101(b).
Key questions include: Who qualifies as an "immediate relative" under 201(b) and why does it make a difference? Who qualifies as a "child" under 101(b) and when does that make a difference? You will need to consult the Visa Bulletin in fully considering the assigned problems.
You do not need to trouble yourselves with the mechanics of the quotas (including the specific allocations) so long as you understand how they translate into backlogs as identified in the Visa Bulletin.
3.3 INA section 101(b) [text] 3.3 INA section 101(b) [text]
101(b) As used in titles I and II—
(1) The term ‘‘child’’ means an unmarried person under twenty one years of age who is—
(A) a child born in wedlock;
(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at
the time the marriage creating the status of stepchild occurred;
(D) a child born out of wedlock, by, through whom, or onwhose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person;
(E)(i) a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years … Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act;
(F)(i) a child, under the age of sixteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 201(b), who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen who is at least 25 years of age, at least 1 of whom personally saw and observed the child before or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the preadoption requirements, if any, of the child’s proposed residence: Provided, That the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States: Provided further, That no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act;
3.4. The Visa Bulletin
The Visa Bulletin is super important in the practice of family-based immigration. Make sure you understand how it works. The dates in the chart are so-called "priority dates", indicating that visas are available for benefeciaries for whom petititions (Form I-130s) were filed on or before the date listed. With the Bulletin, you can see how long certain beneficaries have waited for their visa to become "available." On that basis, one can roughly project out how long a visa in any particular category will take to become available for petitions filed today.
3.5. Congressional Research Service, US Family-Based Immigration Policy
We won't be discussing this item explicitly in class. It's included to help you navigate the statute. Most of the material in the report can be deduced from the statute itself. The explainer can confirm that understanding, or help get you there if you're having trouble with the relevant provisions.
Congressional Research Service is a bipartisan element of the Library of Congress. Its reports aim to explicate topics without taking sides in policy debates.
3.6 Problems - immigrant preferences 3.6 Problems - immigrant preferences
Assume you are a lawyer assisting clients as described below. What are your assessments of each situation and what other advice might you have for your client? Try to find the most expeditious way to accomplish your client’s ends, paying attention to preference backlogs.
1. On February 7, 2021, you file on behalf of a U.S. citizen father a first preference petition with USCIS for his 26-year-old daughter, a native of Liberia. The agency requires you to file additional evidence to confirm the authenticity of his daughter's birth certificate, and the petition is not approved until April 20, 2023. Approval is soon communicated to the U.S. embassy in Monrovia. What is the daughter's priority date? Is her priority date current, allowing her to secure a visa for an immigrant admission?
2. James has been a lawful permanent resident of the United States for 10 years. Last month in Kenya he married Winifred, a national of Kenya who has a six-year-old child by a previous marriage. He wants to bring his wife and her child to this country as soon as possible. How would your advice change if the child were 22-years-old?
3. James would like to secure the admission of his brother, who was born in and is a national of the Philippines. James would also like to seek the admission of his aging parents and a nephew whom he raised after the nephew was orphaned.
4. James has a daughter by a previous marriage who is 20 years old and married, also a Filipina national. Assess the possibilities for the daughter’s admission (along with her Filipino husband). What if his daughter was unmarried?
5. Maria, who is present in the United States in violation of the immigration laws, gives birth to a son in Atlanta. The son has U.S. citizenship under the 14th Amendment. Can he petition for the admission of his mother as a permanent resident alien?
3.7 Resources 3.7 Resources
3.7.1. Form I-130
This form is included to give you an idea of what is filed by a citizen or LPR in petitioning for the admission of an "alien relative." The forms (and accompanying instructions, which you can find on the USCIS website) often supply a helpful translation of the statute and regulations, though they do not themselves have the force of law.
3.7.2. How to Submit a Visa Petition | U.S. Department of State
This is linked to give you an idea of how the process works in practice; feel free to skim the content of this page. You do not need to memorize the steps in detail as long as you understand the basic outlines as described in the set-up video.
3.7.3. Immigrant Visa Processing Updates for Nationalities at High Risk of Public Benefits Usage
A breaking development. This does not affect eligibility for immigrant visas. It is placing a kind of hold on applications for visas by nationals of these countries. The stated justification relates to a ground of inadmissibility that we will consider later in the semester -- whether an immigrant is "likely to become a public charge."